The Florida Anti-Mask Laws: Unveiling Florida’s Crime Fighting Legislation

Michael Page

Designed to aid law enforcement and to prevent criminals from avoiding detection, Florida’s anti-mask laws—comprised of § 775.0845 and § 876.11–.16—have proven to be effective in providing safety to citizens of the Sunshine State from masked criminals.[1]  However, parts of these laws have been criticized of overstepping their bounds in their application, and have required both judicial and legislative intervention to rein them in.[2]  This intervention has indeed led to significant advancements in this regard; although, in recent years, this progress has become stagnant.[3]  Even though the overreach of statutes § 876.12–.15—which form the primary body of the anti-mask laws—has been curtailed to an acceptable level via supplementary statutes, the same cannot be said for the auxiliary statute, § 775.0845.[4]  Florida Statute § 775.0845 hardens punishment for any criminal, who—during the commission of a crime—conceal his or her identity.[5]  For these criminals, wearing a mask amplifies their sentencing beyond which would normally be given for a specific crime.[6]  By its nature, this statute attaches itself to any criminal activity, that is, except for the crimes of wearing masks provided by the anti-mask laws’ main body of statutes.[7]  While portions of this reclassification statute have been addressed, through its judicial employment, it is clear that the statute suffers from an ambiguous application that leaves un-expecting citizens vulnerable to its wrath.
The Florida anti-mask laws have been able to adapt relatively well since their original inception in 1951 and is almost comparable to MAMA.[8]  The laws aided in squelching the Ku Klux Klan in the South and provided citizens with much needed relief from the terroristic tactics.[9]  By the 1980s, these statutes continued to serve in content-neutral purposes, namely aid in crime prevention.[10]  This was implemented by de-incentivizing criminals from using masks, hoods, and other devices by increasing the penalty imposed during sentencing.[11]  Due to unclear legislative language, the application of the increased penalty caused some conflict in the courts.[12]  The Supreme Court of Florida put the issue to rest when it interpreted the this increase to be an enhancement.[13]  However, the legislature disapproved of this interpretation and amended the statute to be clearly labeled as a reclassification statute.[14]  While there was little practical difference between the two penalty increases barring anything else, the statute frequently interacts with the habitual offender statute.[15]  The habitual offender statute, as an enhancement, was unable to be applied to other enhancement statutes without violating an offender’s due process rights.[16]  Once the anti-mask statue was corrected to read as an offense reclassification statute, the two were both able to be applied to a single case with no violations.[17]
            While the procedural issues of the criminal anti-mask law were resolved, there are issues that still remain regarding its substantive aspect.  These issues revolve around a disconnect between the language of the statute and the court’s interpretation of it.  While most of the anti-mask statutes specify concealing the face, the reclassification statute makes no such specification; the court then applied this statute to a case involving a man committing a crime wearing a women’s clothing.[18]  The court only glossed over this issue and has not had a second opportunity to discuss its reasoning.[19]  However, it seems that the court found a person’s identity to be more than just his or her face, but the entirety of the characteristics that make that person who he or she is.[20]  Unfortunately, this does not offer much insight as to how much consideration the court would give to crossdressers, who also may be criminals.[21]  The court only stated that the evidence of the defendant regularly crossdressing did not preclude the use of this disguise to facilitate the defendant’s criminal behavior.[22]
            One substantive issue, on the other hand, was adequately addressed by the Supreme Court of Florida in the early 1980s.[23]  The anti-mask statutes were found to have a broad sweep that too easily reached into innocent activities, despite the exceptions given to the law.[24]  To repair this fatal mistake, the Florida legislature decriminalized the use of devices that concealed the wearer’s identity, that is, unless there is an intent to commit some crime.[25]  This is only a single circumstance of reducing the vague application of the statutes, but more needs to be done.  Unless the legislature is proactive or a needed case in controversy appears, these laws will remain unchanged.  If the legislature were to amend the statutes, other states can provide guidance into better statutory language for Florida law.  Florida courts can also learn from other states since cases in controversy discussing masks themselves are few and far in between.  The court should examine cases in other states to aid their understanding of Florida’s own statutes when a case appears that is similar to a case from another state.  Whether or not the Florida laws are corrected, one such case the courts should be mindful of is Commonwealth v. Santos—where concealment of identity must be determined individually, based on the full circumstances of each.[26]  However, while helpful, it alone is not adequate alone in removing ambiguity from the statutes.
            The Model Anti-Mask Act may be the answer the Florida legislature needs.  It effectively merges the seven statutes that comprise Florida’s anti-mask laws into two sections.[27]  MAMA § 100 essentially comprises § 876.11–.16.[28]  It dictates in one statute was Florida’s legislation does in six.[29]  At the same time, it provides a narrower application, requiring the intent to conceal one’s identity.[30]  Furthermore, by offering examples of the ways in which an individual conceals his or her identity, § 100 facially implies a definition of identity that goes beyond facial recognition.[31]  This version of identity acknowledges that a person is more than just his or her face, while Florida’s anti-mask laws do not do the same.  Meanwhile, MAMA § 200 encompasses the § 775.0845 provision, but also provides a key addition.[32]  § 200 demands an additional layer of intent not in Florida’s statute.[33]  Here, the concealment of identity must be for the purpose of furthering the commission of a crime; thus, eliminating the question of happenstance concealment of identity.[34]  Nevertheless, Florida should not adopt a mirror replica of this section.  In its current state, § 200, labeled as an enhancement, would conflict with the repeat offender statute and must be re-categorized as a reclassification.[35]  Close attention needs to be given by Florida lawmakers if this statute is to adapt into the next seventy years as it has for the nearly seventy years before.

[1].          S. Poverty Law Ctr., Ku Klux Klan:  A History of Racism and Violence 22–23 (Richard Baudouin ed., 6th ed. 2011); Zachary J. Wolf, Hate Crimes L § 12:1, Westlaw (2017 ed. 2017); see also Fla. Stat. §§ 775.0845, 876.11–.16 (2017).
[2].            See Fla. Stat. §§ 775.0845, 876.155; Sumpter v. State, 838 So. 2d 624, 625 (Fla. 2003); Cabal v. State, 678 So. 2d 315, 317 (Fla. 1996); Robinson v. State, 393 So. 2d 1076, 1077 (Fla. 1980).
[3].            See Fla. Stat. §§ 775.0845, 876.155; Sumpter v. State, 838 So. 2d 624, 625 (Fla. 2003); Cabal v. State, 678 So. 2d 315, 317 (Fla. 1996); Robinson v. State, 393 So. 2d 1076, 1077 (Fla. 1980).
[4].              Fla. Stat. §775.0845.
[5].              Id.
[6].              Id.
[7].              Id.
[8].              See Fla. Stat. §§ 775.0845, 876.11–.16 (2017); Simoni, supra note 153, at 268–70.
[9].              S. Poverty Law Ctr., supra note 1, at 22–23.
[10].            Wolf, supra note 1, at § 12:1.
[11].            Fla. Stat. § 775.0845.
[12].         See Archibald v. State, 646 So. 2d 298 (Fla. 5th DCA 1994); Spicer v. State, 615 So. 2d 725, 726 (Fla. 2d DCA 1993), superseded by statute, Fla. Stat. § 775.0845 (1995); Jennings v. State, 498 So. 2d 1373, 1374 (Fla. 1st DCA 1986), overruled by Cabal v. State, 678 So. 2d 315 (Fla. 1996).
[13].            Cabal v. State, 678 So. 2d 315, 318 (Fla. 1996), superseded by statute, Fla. Stat. § 775.0845 (1997).
[14].            Fla. Stat. § 775.0845 (1997).
[15].            16 William H. Burgess, Fla. Prac. Sentencing § 6:47, Westlaw (2016-2017 ed. 2016).
[16].            Id.; Fla. Stat. § 775.084 (2017).
[17].            Sumpter v. State, 838 So. 2d 624 (Fla. 2003).
[18].            Fla. Stat. §§ 775.0845, 876.11–.16 (2017); Fletcher v. State, 472 So. 2d 537, 538–40 (Fla. 5th DCA 1985).
[19].            See Fletcher, 472 So. 2d 538–40.
[20].            See id.
[21].            See id.
[22].            See id. at 539.
[23].            Robinson v. State, 393 So. 2d 1076, 1077 (1980).
[24].            Id.; see also Fla. Stat. § 876.16 (2017).
[25].            Fla. Stat. § 876.155 (2017).
[26].            Commonwealth v. Santos, 672 N.E.2d 562, 565 (Mass. App. Ct. 1996).
[27].            Stephen J. Simoni, Note, “Who Goes There?”—Proposing a Model Anti-Mask Act, 61 Fordham L.R. 241, 268–70 (1992).
[28].            See id.; Fla. Stat. § 876.11–.16 (2017).
[29].            Simoni, supra note, 27, at 268–70; Fla. Stat. § 876.11–.16.
[30].            Simoni, supra note, 27, at 268.
[31].            Id.
[32].            Id. at 269–70; Fla. Stat. § 775.0845 (2017).
[33].            Simoni, supra note 27, at 269–70; Fla. Stat. § 775.0845 (2017).
[34].            Simoni, supra note 27, at 269–70.
[35].            Id.; Fla. Stat. § 775.084 (2017).

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